AKBAYAN, et al. vs Aquino, et al.

CASE PROFILE​______________________________________________
Citation G.R. No. 170516
Title AKBAYAN,et al. vs Aquino, et al.
Date July 16, 2008
Court Supreme Court, En Banc (Philippines)
Ponente J. Carpio-Morales

CASE OVERVIEW​____________________________________________
Parties

● Petitioners:

○ AKBAYAN Citizens Action Party (AKBAYAN)

> ​Akbayan is a ​political party in the ​Philippines established in
the 1990s.

○ Pambansang Katipunan ng mga Samahan sa Kanayunan

(PKSK)
> ​PKSK is a national federation of farmers, fisherfolk and other
rural-based organizations established in 2000 ​to demand
priority for agricultural development through equity measures
such as agrarian and aquatic reforms.

○ Alliance of Progressive Labor (APL)

> ​APL is a labor organization organized in 1996 to protect the
rights of all types of workers and unions.

○ Vicente A. Fabe, Angelito R. Mendoza, Manuel P. Quiambao,

Rose Beatrix Cruz-Angeles, Cong. Lorenzo R. Tanada III,
Cong. Mario Joyo Aguja, Cong. Loreta Ann P. Rosales, Cong.
Ana Theresia Hontiveros-Baraquel, and Cong. Emmanuel Joel
J. Villanueva

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● Respondents:

○ Thomas G. Aquino, in his capacity as Undersecretary of the

Department of Trade and Industry (DTI) and Chairman and
Chief Delegate of the Philippine Coordinating Committee (PCC)
for the Japan-Philippines Economic Partnership Agreement

○ Edsel T. Custodio, in his capacity as Undersecretary of the

Department of Foreign Affairs (DFA) and Co-Chair of the PCC
for the JPEPA

○ Edgardo Abon, in his capacity as Chairman of the Tariff

Commission and lead negotiator for Competition Policy and
Emergency Measures of the JPEPA

○ Margarita Songco, in her capacity as Assistant Director-General

of the National Economic Development Authority (NEDA) and
lead negotiator for Trade in Services and Cooperation of the
JPEPA

○ Malou Montero, in her capacity as Foreign Service Officer I,

Office of the Undersecretary for International Economic
Relations of the DFA and lead negotiator for the General and
Final Provisions of the JPEPA

○ Erlinda Arcellana, in her capacity as Director of the Board of

Investments and lead negotiator for Trade in Goods (General
Rules) of the JPEPA

○ Raquel Echague, in her capacity as lead negotiator for Rules of

Origin of the JPEPA

○ Gallant Soriano, in his official capacity as Deputy Commissioner

of the Bureau of Customs and lead negotiator for Customs
Procedures and Paperless Trading of the JPEPA

○ Ma. Luisa Gigette Imperial, in her capacity as Director of the

Bureau of Local Employment of the Department of Labor and

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 Employment (DOLE) and lead negotiator for Movement of
Natural Persons of the JPEPA

○ Pascual De Guzman, in his capacity as Director of the Board of

Investments and lead negotiator for Investment of the JPEPA

○ Jesus Motoomull, in his capacity as Director for the Bureau of

Product Standards of the DTI and lead negotiator for Mutual
Recognition of the JPEPA

○ Louie Calvario, in his capacity as lead negotiator for Intellectual

Property of the JPEPA

○ Elmer H. Dorado, in his capacity as Officer-in-Charge of the

Government Procurement Policy Board Technical Support
Office, the government agency that is leading the negotiations
on Government Procurement of the JPEPA

○ Ricardo V. Paras, in his capacity as Chief State Counsel of the

Department of Justice (DOJ) and lead negotiator for Dispute
Avoidance and Settlement of the JPEPA

○ Adonis Sulit, in his capacity as lead negotiator for the General

and Final Provisions of the JPEPA

○ Eduardo R. Ermita, in his capacity as Executive Secretary

○ Alberto Romulo, in his capacity as Secretary of the DFA

Action

Petition for mandamus and prohibition to obtain from respondents the full
text of the Japan-Philippines Economic Partnership Agreement (JPEPA)
including the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto
> ​JPEPA is a comprehensive bilateral trade and investment agreement
between Japan and the Philippines aimed at increasing trade and
investment opportunities between the two economies.

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Treaty or Law

Doctrine of Executive Privilege​, as an exception to the ​Constitutional

provisions of freedom of speech, of the press, or of the freedom of access
to information

CASE BRIEF​________________________________________________
Facts

The House Special Committee on Globalization (the House Committee)

requested respondent Aquino to furnish the Committee a copy of JPEPA.
Respondent Aquino did not respond. Congressman Aguja later requested
for the same document, but Aquino, replied that the Congressman shall be
provided with a copy thereof once the negotiations are completed and as
soon as a thorough review has been conducted. In a separate move, the
House Committee, through Congressman Herminio G. Teves, requested
respondent Ermita to furnish it with a copy of the document, but Ermita
replied that a copy of the draft JPEPA will be forwarded to the Committee
as soon as the text thereof is settled and complete.

The House Committee resolved to issue a subpoena for the most recent
draft of the JPEPA, but then House Speaker Jose de Venecia had
requested to hold in abeyance the issuance of the subpoena until President
Arroyo gives her consent to the disclosure of the documents. Amid
speculations that the JPEPA might be signed by the Philippine government,
the present petition was filed.

Petitioners' main argument: ​Th​ e refusal of the government to disclose the

documents bearing on the JPEPA negotiations violates their right to
information on matters of public concern and contravenes other
constitutional provisions on transparency, such as that on the policy of full
public disclosure of all transactions involving public interest and that
non-disclosure of the same documents undermines their right to effective
and reasonable participation in all levels of social, political, and economic
decision-making.

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Respondents' counter-argument: ​Diplomatic negotiations are covered by
the doctrine of executive privilege, thus constituting an exception to the
right to information and the policy of full public disclosure.

Issues

1. Whether the claim of the petitioners is covered by the right to

information

2. Whether the diplomatic negotiations are covered by the doctrine of

executive privilege

3. Whether the executive privilege claimed by the respondents applies

only at certain stages of the negotiation process

4. Whether there is sufficient public interest to overcome the claim of

privilege

Resolution

Whether the claim of the petitioners is covered by the right to

information

Yes. The claim of the petitioners is covered by the right to information.

To be covered by the right to information, the information sought must meet

the threshold requirement that it be a matter of public concern. In the case
of Legaspi vs CSC, G.R. No. L-72119, May 29, 1987, the Supreme Court
held that 'public concern' like 'public interest' is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or
simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by
case basis whether the matter at issue is of interest or importance, as it
relates to or affects the public.

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From the nature of the JPEPA as an international trade agreement, it is
evident that the Philippine and Japanese offers submitted during the
negotiations towards its execution are matters of public concern.​The claim
of the petitioners is, thus, covered by the right to information.

Whether the diplomatic negotiations are covered by the doctrine of

executive privilege

Yes. The diplomatic negotiations are covered by the doctrine of executive

privilege.

The privileged character of diplomatic negotiations has been recognized in

this jurisdiction. In the case of Chavez vs PCGG, G.R. No. 130716,
December 9, 1998, the Supreme Court held that information on
inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the
sake of national interest. In the case of PMPF vs Manglapus, G.R. No.
84642, September 13, 1988, the Supreme Court resolved that secrecy of
negotiations with foreign countries is not violative of the constitutional
provisions of freedom of speech or of the press nor of the freedom of
access to information and that the nature of diplomacy is confidential and
requires centralization of authority and expedition of decision which are
inherent in executive action.

Applying the principles mentioned, it is clear that while the final text of the
JPEPA may not be kept perpetually confidential - since there should be
"ample opportunity for discussion before a treaty is approved" - the offers
exchanged by the parties during the negotiations continue to be privileged
even after the JPEPA is published. It is reasonable to conclude that the
Japanese representatives submitted their offers with the understanding that
"historic confidentiality" would govern the same. Disclosing these offers
could impair the ability of the Philippines to deal not only with Japan but
with other foreign governments in future negotiations.

Whether the executive privilege claimed by the respondents applies

only at certain stages of the negotiation process

No. ​The executive privilege claimed by the respondents does not apply
only at certain stages of the negotiation process.

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In the case of Chavez vs PEA, G.R. No. 133250, July 9, 2002, the
Supreme Court ruled that ​the constitutional right to information includes
official information on on-going negotiations before a final contract. The
information, however, must constitute definite propositions by the
government and should not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting
national security and public order.

It follows from this ruling that even definite propositions of the government
may not be disclosed if they fall under "recognized exceptions." The
privilege for diplomatic negotiations is clearly among the recognized
exceptions.

Whether there is sufficient public interest to overcome the claim of

privilege

No. There is no sufficient public interest to overcome the claim of privilege.

There are at least two kinds of public interest that must be taken into
account. One is the presumed public interest in favor of keeping the subject
information confidential, which is the reason for the privilege in the first
place, and the other is the public interest in favor of disclosure, the
existence of which must be shown by the party asking for information. (​In re
Sealed Case (​ 121 F.3d 729, 326 U.S.App.D.C. 276 [1997])).

In Nixon vs Sirica (​487 F.2d 700 (D.C. Cir. 1973)), it was ruled that the
presumption that the public interest favors confidentiality can be defeated
only by a strong showing of need by another institution of government - a
showing that the responsibilities of that institution cannot responsibly be
fulfilled without access to records of the President's deliberations. The
sufficiency of the Committee's showing of need has come to depend,
therefore, entirely on whether the subpoenaed materials are critical to the
performance of its legislative functions.

Petitioners have failed to present the strong and "sufficient showing of

need" referred to in the immediately cited cases. The arguments they
proffer to establish their entitlement to the subject documents fall short of
this standard.

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“Negotiations between two countries to draft a treaty represent a
true example of a deliberative process. Much give-and-take must
occur for the countries to reach an accord. A description of the
negotiations at any one point would not provide an onlooker a
summary of the discussions which could later be relied on as law. It
would not be "working law" as the points discussed and positions
agreed on would be subject to change at any date until the treaty
was signed by the President and ratified by the Senate.” (citing
Judge Green, U.S. District Court, District of Columbia in Fulbright &
Jaworski v. Department of the Treasury, 545 F.Supp. 615, May 28,
1982)

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